An alien who had been ordered deported was convicted of
violating § 20(c) of the Immigration Act of 1917, as amended, by
"willfully" (1) failing to depart from the United States, and (2)
failing to make timely application for travel or other documents
necessary to his departure, within six months from the date of the
final order of deportation.
Held: on the record in this case, the evidence was
insufficient to support the verdict, and the conviction is
reversed. Pp.
355 U. S.
274-280.
1. There being no evidence that any country was willing to
receive him, it cannot be said that there was any evidence to
support a finding that he "willfully" failed to depart. P.
355 U. S.
276.
2. In view of statements made to him by an Immigration Inspector
indicating that the Immigration and Naturalization Service would
take steps to obtain travel documents for him, and in view of a
letter to him from the Officer in Charge stating that arrangements
were being made to effect his deportation and that he would be
notified when and where to present himself for deportation, it
cannot be said that there was sufficient evidence to support a
finding that he acted "willfully" in failing to make timely
application for the documents necessary to his departure. Pp.
355 U. S.
276-280.
40 F.2d 94 reversed.
Page 355 U. S. 274
MR. JUSTICE WHITTAKER delivered the opinion of the Court.
This case involves the legality of convictions of petitioner, an
alien previously ordered deported, for (1) willful failure to
depart from the United States, and (2) willful failure to make
timely application in good faith for travel or other documents
necessary to his departure, within six months from the date of the
final order of deportation.
Section 20(c) of the Immigration Act of 1917, 39 Stat. 890, as
amended, 57 Stat. 553, 64 Stat. 1012, 8 U.S.C. (1946 ed., Supp. IV)
§ 156(c), provided in pertinent part that
"[a]ny alien against whom an order of deportation is outstanding
. . . who shall willfully fail or refuse to depart from the United
States within a period of six months from the date of such order of
deportation, or from the date of the enactment of the Subversive
Activities Control Act of 1950, whichever is the later, or shall
willfully fail or refuse to make timely application in good faith
for travel or other documents necessary to his departure, . . .
shall, upon conviction, be guilty of a felony, and shall be
imprisoned not more than ten years. . . ."
It is the above-quoted provisions of § 20(c) that are involved
here.
Petitioner, a native of Finland, went to Canada in 1910 and
later acquired Canadian citizenship. He entered the United States
in 1916, and, except for several foreign trips, has since resided
here. A final order of deportation was entered against him on April
9, 1952, under the Act of October 16, 1918, 40 Stat. 1012, as
amended, 41 Stat. 1008, 54 Stat. 673, 64 Stat. 1006, 1008, 8 U.S.C.
(1946 ed., Supp. IV) § 137, [
Footnote 1] by reason of his membership in the
Page 355 U. S. 275
Communist Party of the United States from 1923 to 1930.
[
Footnote 2]
On November 10, 1953, petitioner was indicted, in two counts, in
the United States District Court for the Western District of
Wisconsin. The first count charged him with willful failure to
depart from the United States within six months from the date of
the deportation order. The second count charged him with willful
failure to make timely application in good faith for travel or
other documents necessary to his departure from the United States
within six months from the date of the deportation order. Upon a
trial before a jury, he was convicted on both counts. He was
sentenced to imprisonment for a term of five years on Count 1, and
imposition of sentence on Count 2 was suspended until completion of
service of the sentence on Count 1. The Court of Appeals affirmed.
240 F.2d 94. We granted certiorari. 353 U.S. 935.
Page 355 U. S. 276
Petitioner challenges the judgments of conviction on a number of
grounds, but, in the view we take of the case, it is necessary to
consider only the first ground -- namely, that the evidence is
insufficient to support the verdict on either count.
This is a criminal case. It is therefore necessary that the
prosecution adduce evidence sufficient to support a finding of
guilt beyond a reasonable doubt. This is no less true when the
defendant is an alien.
Harisiades v. Shaughnessy,
342 U. S. 580,
342 U. S. 586.
The crucial element of the crime charged in the first count is that
petitioner "did
willfully fail to depart from the United
States" within six months from the deportation order of April 9,
1952. (Emphasis supplied.) A thorough review of the record
discloses no evidence that any country was willing, in that period,
to receive petitioner. [
Footnote
3] There can be no willful failure to depart until "the country
willing to receive the alien is identified."
United States v.
Spector, 343 U. S. 169,
343 U. S. 171.
It therefore cannot be said that there was any evidence to support
the jury's finding that petitioner "did willfully fail to depart
from the United States" within six months from the deportation
order. The evidence on Count 1 is thus insufficient to support the
verdict, and the judgment of conviction thereon must fall.
The Government argues that petitioner willfully failed to make
timely application to Finland, or to some other
Page 355 U. S. 277
country, to receive him, and that if he had done so he might
have been able to identify, within the time prescribed, a country
to which he could go. While this argument has some relation to
Count 1, it mainly involves, and therefore brings us to a
consideration of, the adequacy of the evidence to support the
verdict on Count 2. On April 18, 1952, nine days after entry of the
order of deportation, the officer in charge of the Immigration and
Naturalization Service at Duluth, Minnesota, at the request of the
District Director of Immigration at Chicago, sent Inspector Maki to
interview petitioner and obtain "personal data, usually called
passport data." Maki admitted at the trial that, in that interview,
he
"told [petitioner] that [he] had been instructed to get this
personal history; that [he] was going to prepare this on the
Passport Data form, and that it would [be sent to Chicago where it]
would be considered by [the] Service down there with a view towards
[the] Service obtaining some travel document or other in
[petitioner's] case,"
and that this was common procedure in such cases. Petitioner
furnished the information requested, and it was forwarded by Maki,
on April 21, 1952, to the District Director at Chicago. On April
30, 1952, petitioner received a letter from the officer in charge
of the Immigration and Naturalization Office in Duluth which, after
reciting that an order directing petitioner's deportation from the
United States had been entered on April 25, 1952, [
Footnote 4] said:
"Arrangements to effect your deportation pursuant to such order
are being made, and, when completed, you will be notified when and
where to present yourself for deportation. "
Page 355 U. S. 278
The letter continued, summarizing pertinent provisions of §
20(c) of the Immigration Act of 1917, as amended, [
Footnote 5] and concluded:
"Therefore, you will recognize the importance of making every
effort in good faith to obtain passport or other travel documents
so that you may effect your departure pursuant to the said order of
deportation within the time prescribed by the quotation above from
the [Immigration Act of 1917, as amended]."
On February 12, 1953, an investigator of the Service interviewed
and took a written and signed statement from petitioner, which was
put in evidence by the Government at the trial. In that statement,
petitioner corroborated Maki's statement to him of April 9, 1952,
acknowledged receipt of the letter of April 30, 1952, and stated,
in substance, that he had not applied for travel documents because,
relying on Maki's statement and the letter mentioned, he had "been
waiting for instructions from the immigration authorities" or "from
Mr. Maki as to when [he] should start to make application for a
passport, in case the Service had failed to get a visa or a
passport." Petitioner's statement further recited that he had never
received any request from the Service "to execute any passport
application," and that he had not willfully refused to depart from
the United States, nor to apply in
Page 355 U. S. 279
good faith for travel documents, but wanted "to cooperate [with
the Attorney General to get] a passport to Finland. . . ."
Is this evidence sufficient to support the jury's finding that
petitioner
"did
willfully fail to make timely application in good
faith for travel or other documents necessary to his departure from
the United States?"
We believe that it is not. There can be no
willful
failure by a deportee, in the sense of § 20(c), to apply to, and
identify, a country willing to receive him in the absence of
evidence, or an inference permissible under the statute, of a "bad
purpose" or "[non-]justifiable excuse," or the like.
Cf. United
States v. Murdock, 290 U. S. 389,
290 U. S. 394;
Spies v. United States, 317 U. S. 492,
317 U. S.
497-498. Inspector Maki had informed petitioner that his
purpose, in procuring the "passport data" on April 9, 1952, was to
send it to the District Director at Chicago, where it "would be
considered . . . with a view towards . . . obtaining some travel
document or other in his case." Moreover, the letter of April 30,
1952, from the officer in charge of the Duluth office, told
petitioner in the plainest language that the Service was making the
arrangements to effect his deportation and, when completed, he
would be notified when and where to present himself for
deportation. Surely petitioner was justified in relying upon the
plain meaning of those simple words, and it cannot be said that he
acted "willfully" --
i.e., with a "bad purpose" or without
"justifiable excuse" -- in doing so until at least they were in
some way countermanded, which was never done within the prescribed
period. It is true that the last paragraph of that letter drew
attention to the importance of making good faith efforts to obtain
the documents necessary to effect departure within the time
prescribed, but that language did not in terms negate, and cannot
fairly be said implicitly to have negated, the earlier paragraph of
the letter, because, as stated, that paragraph of
Page 355 U. S. 280
the letter plainly told petitioner that the Service was itself
making the necessary arrangements for his deportation and, when
completed, he would be notified when and where to present himself
for deportation. In this factual setting, we believe there was not
sufficient evidence to support the jury's finding that petitioner
acted willfully in failing to apply for documents necessary to his
departure within the time prescribed. The evidence on Count 2 is
thus insufficient to support the verdict, and the judgment of
conviction on that count must also fall.
Reversed.
[
Footnote 1]
That Act provided, in pertinent part:
"[SEC. 1] That any alien who is a member of any one of the
following classes shall be excluded from admission into the United
States:"
"
* * * *"
"(2) Aliens who at any time, shall be or shall have been members
of any of the following classes:"
"
* * * *"
"(C) Aliens who are members of or affiliated with (i) the
Communist Party of the United States. . . ."
(64 Stat. 1006.)
"SEC. 4. (a) Any alien who was, at the time of entering the
United States, or has been at any time thereafter, . . . a member
of any one of the classes of aliens enumerated in section 1(2) of
this Act, shall, upon the warrant of the Attorney General, be taken
into custody and deported in the manner provided in the Immigration
Act of February 5, 1917. The provisions of this section shall be
applicable to the classes of aliens mentioned in this Act,
irrespective of the time of their entry into the United
States."
(64 Stat. 1008.)
[
Footnote 2]
He was asked at the deportation hearing to specify the country
to which he would prefer to go, if deported from the United States,
and he answered: "To my native country, Finland." Deportees are
authorized to designate the country of their first choice by §
20(a) of the Immigration Act of 1917, as amended.
[
Footnote 3]
There was evidence that, after expiration of the period of six
months from the issue of the deportation order on April 9, 1952,
petitioner obtained a passport to Canada. But this evidence was
irrelevant to the issue whether Canada was willing to receive
petitioner during the period covered by the indictment, and, in
fact, counsel for the Government objected to this evidence upon the
ground that the Canadian passport did not show Canada's willingness
to accept petitioner "within the six months' period [after April 9,
1952], which is the . . . period that we are concerned with in this
indictment."
[
Footnote 4]
This was, in fact, not the date of the deportation order, which
was April 9, 1952, but, rather, was the date of the warrant of
deportation ordering petitioner deported to Finland.
[
Footnote 5]
That summary read as follows:
"In this connection, you are reminded that [§ 20(c) of the
Immigration Act of 1917, as amended] . . . declares that any such
alien 'who shall willfully fail or refuse to depart from the United
States within a period of six months from the date of such order of
deportation, . . . or shall willfully fail or refuse to make timely
application in good faith for travel or other documents necessary
to his departure, or who shall connive or conspire, or take any
other action, designed to prevent or hamper or with the purpose of
preventing or hampering his departure pursuant to such order of
deportation, or who shall willfully fail or refuse to present
himself for deportation at the time and place required by the
Attorney General pursuant to such order of deportation, shall, upon
conviction, be guilty of a felony. . . .'"